much beholding to them whose best Title to and strongest Hold of his New-gotten Crowne was their Affection and Good-will towards him Therefore the Lords may very well owne the citing of that Record and not account it any Dishonour to them notwithstanding the gentle admonition given them to the contrary by the Writer of that Paper of Reasons And so I hope I have sufficiently evinced this truth that the sole Jâ—dicature of Parlament is lodged in the House of Peers and that all who come for relief to Parlament must have it there It now rests to shew that it extends to the Relieving of such as have suffered wrong in Courts of Equity and receiving of Appeales from those Courts We have already seen that in case of Delay of Justice the House of Lords doth give Relief and by the same reason they may do it in case of Deniall of Justice and of doing Injustice And in truth there is greater Reason for it for when Justice is but delayed a little waiting and patience may happily bring a Remedy but when an unjust Decree is given there is a Ne plus ultra in that Court no help is to be there expected and without such an Appeal the Party grieved must be without Remedy Then why not as well receive an Appeal from a Court of Equity and give Relief upon it if there be cause as to reverse an Erroneous Judgement upon a Writ of Error from a Court of Common Law as hath been said already there is more danger from a Court of Equity where ones Doome depends upon the will of one Man that is not tied to the strict Rule of Law than where there are four Judges who have that strict Rule to goe by And can it be believed that in a Government so well modelled and established by the Wisdom of our Ancestors as this is there should be a standing known Remedy appointed for the lesser evil which apparently will more rarely happen and none for the greater which probably may befall us much more frequently In the third place one may argue thus By the constitution of this Government generally from all Inferiour Courts where any Body is grieved he may appeale to a Superiour and so Gradatim till he come to the highest of all the Supreame Judicature in Parlament as 50. E. 3. n. 38. was said to the Bishop of Norwich that Errors in the Common Pleas were to be corrected in the Kings Bench and of the Kings Bench in the Parlament So from particular Courts that are in several Counties and from Judges of Assize yea from Ireland the Party grieved resorts to the Courts of Westminster and from them to the Parlament This is the ordinary Tract but where it is otherwise provided by Act of Parlament in special Cases to make some Judgements in some Judicatories finall Else the last resort where all appealing terminates is the supreame Court of Parlament whither they have still come from all the Courts in England sometimes Gradatim by steps going first to other Courts sometimes immediately Per saltum from the Court it self where the Judgement complained of was first given And so have they received Complaints and given Relief from Sentences in the Star-Chamber as in 1641. April 2. to Mr. Lambert Osbolston In the High Commission to Nicholas Bloxam 1640. Febr. 9. and to Sir Robert Howard December 22. the same Parlament and to Iohn Turner December 30. who had laine fourteen years in Prison by a Sentence of the High Commission So from an Order of the Counsel Table to William Waters and Thomas Waters Ianuary 25. who had been committed thence for refusing to pay Ship-Money and they made Dr. Clerk and Dr. Sibthorp reimburse their charges and pay them 100 l. damages for procuring them that trouble by a false Certificate The 9 th of February from a Sentence in the Ecclesiastical Court at Glocester by which Iohn Radway William Newark and Walter Coates had been committed to Prison and Excommunicated And February 23. The Lords gave Relief to Abraham Hill who had been committed to Prison by the Major of Colchester Multitudes of such Presidents may be produced who will take the pains to look over the Journals but these are sufficient to shew that upon complaint the House of Peers hath still given Redress to what ever hath been done amiss by any other Court Ecclesiastical or Civil Court of Law or Court of Equity and was never found fault with till now But now they must not meddle with Appeals from Decrees in Chancery and if a Member of the House of Commons be concerned it is then a Breach of their Priviledge and that House will punish any Counsel that shall appear at the Lords Barr to plead against a Member together with the Party himself that brings the Appeal and all others employed by him in the solliciting and following his business So then a Person that cannot obtaine Justice in Chancery who perhaps hath been brought thither against his will and is barred by an Injunction there from pursuing his Right in any other of the Kings Courts of Westminster and that wrongfully as Injunctions are some times laid on in Chancery There he cannot have Right but is opprest with an unjust Decree and he hath no Remedy but must lie under that Oppression and the Supreame Court of Judicature in the Kingdome which receives Complaints and gives Relief against the Erroneous Proceeding of all other Courts must be Impotent in this behalf This is not only a Derogation to the High Court of Parlament but it would be a great Defect in the general Administration of Justice in this Kingdome To this is answered Yes there is a Remedy proposed to prevent a Failer of Justice The King may grant a special Commission whensoever there is occasion to certain Persons to the Judges as it was 43. Eliz. to reheare the Cause and give relief to the Party grieved But it is replied First That it may be doubted if this can be done without an Act of Parliament Secondly Admit it may yet as the King may grant it so he may refuse it for there is no Law to make him do it Ex debito Iustitiae therefore if he doth it it will be but Ex gratia ex mero motu which doth not salve the Objection that there would be a defect in the established Rule for the Administration of Justice which ought to make the doeing of Justice a necessary Duty incumbent on the Magistrate be he Supreame or be he subordinate and not leave it voluntary to himself to be Ad libitum It cannot be believed that the Wisdome of our Ancestors would leave the Administration of Justice so loose and uncertaine We see how in the time of Henry the Eight when they annexed all Ecclesiastical Jurisdiction to the Crown they by Act of Parlament 25. H. 8. c. 19. gave the King power by Commission under the Great Seal to appoint such Persons as he shall Name to reheare any Cause
But let us take the House of Lords as it is though there be many young Men there are some more Elderly and it is they commonly that sit out hearing Causes and even amongst the young Lords there be some that apply themselves to Business In the general it may be said of that House that many among them are Persons of Honour and of Integrity that will not be Byassed and of experience to Understand and Judge aright of such Matters as are brought before them The great Officers of the Kingdome are part of that Body who in all reason should be knowing Men the Chancellor of England is alwayes their Speaker who is commonly a Person skilled in the Law and they have all the Judges of the Land to be their Assistants with whom they advice and by whose advice they are guided in difficult Points of Law as it is said in Flouredew's Case 1 H. 7. Ter. Pasc. f. 20. Senescallus cum Dominis Spiritualibus Temporalibus per Consilium Iusticiariorum procedent ad Errorem corrigendum by the Counsel and Advice of the Judges they shall correct the Errors viz. of the Judgement complained of So it is probable and there is Ground to hope and expect one may find Justice here as soon as â—n any other Judicatory Nay perhaps sooner here For when a Lord Chancellor or a Lord Keeper is concerned as he is in all Appeals from Decrees in Chancery which is the proper Question at this time before us a Commission to the Judges or to any other Sett of Men is not so likely to relieve a poor Man that is opprest by an unjust Decree whereby those Commissioners may incurre the displeasure of so great a Person by censuring and vacating his Act as the House of Peers who are not in that Awe of him and Subjection to him as all particular Persons are Which consideration alone hath heretofore been sufficient to justifie the Lords interposing even in the ordinary Judicature of the Kingdome in Causes between Party and Party And the Commons themselves did then so farr approve of this as they made it their desire to the King that it might be so So as it passed into a Law to be an Act of Parlament and a Statute according to the Formality of making Lawes in those times 1 R. 2. m. 11. They pray Que querele entre parties ne soit attemptez ne terminez deuaunt Srs. ne Officiers du Conseil mes que la commune ley courge sans estre tarie es lieux on ils soloient dancien temps estre terminez sil ne soit ticle querele encontre si grande personne que home ne suppose aillours dauoir droit The Answer is Le Roy le voet They pray That Sutes between Party and Party may not be retained and determined before the Lords nor before the Councel but that the Law may have its Course and no Obstruction of it bâ— there where such Businesses did antiently use to be determined except it be in such a Sute and against so great a Person as one cannot otherwise hope to have Justice and the King grants it And 1. H. 4. n. 160. this Statute is again Confirmed Now I know not what Sâ—â—â—e nor what Business can be fitter to be within this Exception then where a Lord Chancellor or a Lord Keeper is concerned for the maintenance of a Decree which himself hath made Besides we know what Influence that great Officer hath in all Commissions that Issue under the Great Seal for naming and appointing the Persons that shall be Commissionated by them And certainly one that complaines of Injustice done by so great a Person would not willingly that he should have hand in appointing the Persons that must Examine and Redress it So as all things considered I do not see where such a Power as this could better be lodged then in the House of Peers if it were not already there and that we were now to chuse where it should be placed Yet all Men are fallible and Parlaments may erre and do erre many times and therefore as commonly second Notions and second Thoughts are better and consequently second Judgements so there lies even an Appeale from the first Judgement in Parlament but it must be still to the Parlament as the Law Books say Error in Parliament convient estre reverse per Parlament that is in another Parlament or another Session not in the same All this tends to shew that not onely the Right of Appeales is in the House of Lords but that neither can it be better any where else Yet there is still one Point behind not yet treated of which must be cleared before I make an end and that is Whether the Lords may proceed upon an Appeale if a Member of the House of Commons be concerned And the same question then may be moved concerning Writs of Error for if the Priviledge of that House extends to the one it must extend to the other the same reason being for both as likewise for the Lords not medling with any Business wherein any of their House is concerned In the first place let us consider what the Usage hath been heretofore and what the Judicature of the House of Peers hath been and how exercised in relation to the House of Commons That heretofore in the Antient times even till Henry the 8 th when the House of Commons did need any thing either for repelling any Injury done to them and punishing those who had done it or for supplying them with any thing they wanted and desired for their advantage and well being they did then come and pray in the Aide of the Lords who did examine the particular Businesses and apply the necessary Remedies they being altogether unable to help themselves hath I think been sufficiently proved already in the former part of this Discourse The Question is now as that was when they complained and when it was at their desire so if when others complained of them and sought remedy against them the Lords had then power to receive the Complaint and relieve the Party grieved Which questionless they had Nor was it ever knowen that ever the House of Commons did before pretend to such a Priviledge as that their Members should be exempt from being put to answer in the House of Lords when any Sute was there commenced against them 16. R. 2. n. 6. Sir Philip Courtney being Knight for Devonshire presents himself to the House of Peers Disant coment il auoit entendâ—z que certeins gentz lui avoient accusez esclandrez au Roi as Seig rs c. Saying he heard he had been accused and slandered to the King and Lords of doeing great wrongs and prayed he might be discharged from serving in Parlament untill he was purged and cleared of them and the Record saith A cause que sa priere sembla au Roi as Seig rs honeste le Roi luy ottroya sa requeste lui en dischargea because
no sending of Counsell to the Tower for pleading for their Clients at the Lords Bar no stop of the Current of Justice It was then observed what the Wisdome of our Fore-Fathers had enjoyned Westminster the 2 d. Nemo recedat a Curia Regis sine remedio But if that should be allowed which is pretended and challenged by the House of Commons as their Priviledge if a Member of theirs be concerned though a Man have received never so hard measure though never so erroneous and unjust a Judgement have been given against him in any of the Courts of Westminster Hall for there is the same reason for both for Writs of Error from a Court of Law as from Appeals from a Court of Equity if Priviledge of the Commons House exempts from the one it must exempt from the other there is no help for him he must sit down and lay his hand upon his Mouth and not once whisper but must Recedere a Curia Regis and that the chief Court the supreame Court sine Remedio So here is an absolute failer of Justice which as Sir Edward Cook saith the Law abhors And as it seemes to me it is upon an irrational ground For here is Priviledge of Parlament against the Parlament it self which makes a Parlament Felo de se to give a Priviledge which enervates it's Power a Power which is proper and peculiar to Parlaments the Dernier Ressort by which it helps when no other Court can help This is taken away and cannot exert it self when a Member of the House of Commons is concerned Against the Rule of all Courts for in other Courts as Chancery Kings Bench Exchequer the Officers that belong to those Courts claime a Priviledge to be sued no where else but no Priviledge to free them that they shall not be sued in their own Courts Now the House of Peers is a Court of Judicature as it is a Part of the Parlament Pars constituens of a Parlament and the Members of the House of Commons have Priviledge as they are Members of Parlament and as their House is the other Pars constituens of a Parlament for both together are Partes constituentes Parliamentum and both make but one Parlament though they be two several constituting Parts And it is not rational to think that either of those Parts can be entituled to a Priviledge which shall abridge the other Part from doeing those Functions which are proper and natural to it As if the House of Peers should assume to themselves a Priviledge that the House of Commons could not without their leave and consent first had propose the Raising of Moneys by way of Tax or Subsidy This is against the nature and constitution of our Parlaments and therefore it cannot be imagined to be true that such a Priviledge can belong to the Lords by one that understands any thing of the Nature of Parlaments And truely it is even as great an Absurdity to say that the House of Commons hath a Priviledge to give a stopp to the Lords proceeding in the hearing of a Cause as a Court of Judicature if one of their Members is concerned in it For the hearing of Causes by way of Appeale or of Writ of Error is as proper and as natural to the House of Lords as a Bill of Subsidy to begin in the House of Commons is proper to that House But I have heard it said that this would be destructive to the House of Commons if the Lords could compell their Members to appeare at their Barr and attend their Causes there and if they would not appear commit them as is the use of other Courts For say they as they commit one they may commit more and even fetch them all out of the House to leave none or not a number to attend the Service there But first this is a mischief so unlike ever to happen that one need almost as little fear it as the Skie falling to kill all the Larks if it were so that they should take upon them to commit those that would not appeare and answer For it is not to be imagined that so many would be concerned in Appeals or Writs of Error at one time as that there would not be enough left to carry on the Business of the House since at most perhaps two or three in a whole Session may be concerned And if so small a number should for their particular occasions which they cannot avoid being sued by others be kept for some few dayes from attending the Publick Service the Matter seems not so great since all along this Parlament for twelve or thirteen years together this House hath had the goodness to dispense still with the attendance of at least two hundred of their Members who have remained at their several Homes for their pleasure many all for their private occasions without coming at all to beare their parts of the Houses Service This is more like to be an Inconvenience to that Service then if the Lords should commit two or three single Persons amongst them for not appearing upon Summons when they are sued before them But none of this need be feared For the House of Lords doth not pretend to a power of committing any Member of the House of Commons if they will not appear nor any Body else for not appearing or not answering being sued before them in a Civil Cause If they will not appeare by themselves or by their Atturney and put in their Answer being lawfully Summoned and having no lawful Excuse for not doeing what is required of them and what they ought to do but will stand out in contempt of their Jurisdiction they will proceede to hear the Cause Ex parte and determine it as they did in the Case of the Deane and Chapter of St. Cedde in Lichfield and the Prior of Newport-Pannel upon a Writt of Error 18. R. 2. n. 11 12. c. The Deane and Chapter had the Parlament before preferred a Petition An̄re S r. tres redoute le Roi a les nobles S rs de cest Parlement c. complaining of a Judgement in the Kings Bench by which an Annuity of 20 Mark per ann and an Arreare of an hundred which they had recovered in the Common Pleas was judged against them in the Kings Bench and had prayed a Scire facias for the Prior to appeare returnable this Parlament which was granted And the Prior now Solempniter vocatus non venit being solemnly called appeared not Whereupon the Record saith Decanus Capitulum petierunt Iudicium Parliamenti quod ob defaltam nunc Prioris procedatur ad examinationem Recordi Processus praedicti Brevis de Errore Quod in Parliamento concessum est The Dean and Chapter demand Judgement and that upon the Default of the Prior they will goe on to examine the Business which the Parlament granted They do so and then give Judgement for the Dean and Chapter And in truth there is all the